1.
The Public Service Bill 1999 (hereafter ‘Bill’) is
intended to replace the current legislative framework for the
establishment and management of the Australian Public Service
(‘APS’).

2.
The Bill is an element in the Government’s public service
reform agenda, which has three parts

â¢
modernising the APS legislative framework- this is being done in
this Bill which is a careful balance between devolved
responsibility and improved accountability;

â¢
simplifying APS awards and agreement-making processes - this is
being done by the Department of Employment, Workplace Relations and
Small Business (‘DEWRSB’) in accordance with the
Workplace Relations Act 1996 (‘WRA’);
and

â¢
transforming the APS management culture - this will be the
responsibility of Agency Heads.

3.
This public service reform agenda is being implemented within the
new workplace relations framework that has been set out in the
WRA . The Government considers that the APS should
operate, to the maximum extent consistent with its public
responsibilities, under the same industrial relations and
employment arrangements as apply to the rest of the Australian
workforce.

4.
Within the general employment arrangements for the community as a
whole the Bill sets out

â¢
the important values and culture the Parliament wants in the APS
(see Bill Part 3);

â¢
the role and powers of Agency Heads, and their relationship to
Ministers, in a clear and public way;

â¢
a clear statement to those within the APS, and to the Australian
people, of the conduct that is expected of public servants (see
Bill cl.13);

â¢
as part of accountability, significant new inquiry, evaluation and
reporting powers for the Public Service Commissioner including an
annual State of the Service Report to the Parliament (see Bill Part
5 Division 1);

â¢
an independent mechanism for review of employment actions affecting
the employment of an APS employee (see Bill cl.33 and Bill Part 6);
and

â¢
a mechanism by which Government decisions on administrative
arrangements and reorganisations can be implemented (see Bill Part
10).

5.
The Bill seeks to provide a legal framework for APS employment
which achieves an optimal balance between improved accountability
and devolved responsibility (summarised at Attachment A) so as to
maximise the efficiency and effectiveness of the APS.

6.
This Bill is intended to improve the quality of people management
in the APS. This, in turn, is expected to translate, among other
things, into

7.
The Public Service Bill 1999 was introduced into the House of
Representatives on 30 March 1999. The Bill was
identical to the Public Service Bill 1997, introduced into the
House on 26 June 1997 and subsequently amended in November
1997.

8.
The 1997 Bill was referred to the Joint Committee of Public
Accounts (‘JCPA’) together with the accompanying Public
Employment (Consequential and Transitional) Amendment Bill
1997. The Committee’s Report 353, ‘An Advisory
Report on the Public Service Bill 1997 and the Public Employment
(Consequential and Transitional) Amendment Bill 1997’
(‘JCPA Report’) was handed down on 29 September
1997.

9.
The Government accepted the thrust of the recommendations of the
Committee, either fully or in large measure, and moved related
amendments in the House of Representatives. On 30 October
1997, the Government also moved amendments to clarify the meaning
of clauses of the Bill and amendments of a technical nature.
The principal purpose of the Bill was not affected by the
amendments which were made.

10.
The amended Public Service Bill 1997 was introduced into the Senate
on 11 November 1997. The Senate effected further significant
amendments to that Bill and it was returned to the House of
Representatives with those amendments at the end of November
1997.

11.
On 5 December 1997, the Minister Assisting the Prime Minister for
the Public Service informed the House of Representatives that the
Government had rejected outright the amendments made to the Public
Service Bill 1997 by the Senate, and that the legislation would be
returned to the Senate unchanged after three months. That
Bill was formally laid aside in the House of Representatives on 5
December 1997.

12.
The Bill was subsequently reintroduced unchanged into the House of
Representatives on 5 March 1998. After passage through the
House, the legislation was returned to the Senate which made the
same amendments to the Bill as it had in November 1997. On 6
April 1998 the Government again rejected outright the amendments
made by the Senate, and the Bill was laid aside.

13.
The terms of the Public Service Bill 1999 have been considered
further, since its introduction in March 1999, following
consultation with the Opposition. As a result, the Government
is proposing various amendments to the Bill. Those amendments
will not affect the principal purpose and objectives of the
Bill.

2.1.1
When used in the Bill, the term ‘AWA’ (Australian
Workplace Agreement) will have the same meaning as in the
Workplace Relations Act 1996. Reference is made to
this term in the proposed amendment of s-cl.24(1) of the Bill (para
4.6(a) of this Ex. Memo. refers).

2.1.2
When used in the Bill, the term ‘award’ will have the
same meaning as in the Workplace Relations Act 1996 .
It is proposed to omit the definition of this term currently
appearing in s-cl.24(2) of the Bill (para 4.15 of this Ex. Memo.
refers).

2.1.4
When used in the Bill, the term ‘certified agreement’
will have the same meaning as in the Workplace Relations Act
1996 . It is proposed to omit the definition of this term
currently appearing in s-cl.24(2) of the Bill (para 4.19(b) of this
Ex. Memo. refers).

2.1.5
When used in the Bill, the term ‘non-ongoing APS
employee’ will mean a person who is not an ongoing APS
employee. The term is mentioned in cl.29 of the Bill which
deals with the termination of employment of an APS employee.

2.1.8
This term is currently defined in cl.7 of the Bill to mean
directions issued by the Commissioner in relation to APS Values
(see Bill cl.11) or about employment matters relating to SES
employees (see Bill cl.36).

2.1.9
It is proposed to amend the definition by inserting a reference to
directions which will be issued by the Commissioner under cl.15 of
the Bill in relation to procedures which must be established by an
Agency for purposes of dealing with a breach of the Code of Conduct
by an employee of the Agency.

3.2.5
It is proposed to amend this value to widen its scope to provide
that the APS will establish workplace relations that value
communication, consultation, co-operation and input from employees
on matters that affect their workplace.

3.2.7
It is proposed to insert a new value to affirm that the APS will
provide a reasonable opportunity to all eligible members of the
community to apply for APS employment. This complements
existing value (b), which provides that the APS will be a public
service in which employment decisions are based on merit.

3.2.8
It is proposed to insert a new value to provide that the APS will
be a career-based service to enhance the effectiveness and cohesion
of Australia’s democratic system of government. This
new value serves to affirm that the APS will remain an effective
repository of knowledge about government administration and service
delivery.

3.2.9
It is proposed to insert a new value to assert that the APS will
provide a fair system of review of decisions taken in respect of
APS employees. This new value will complement the amended
value (i), which will provide for cooperative workplace relations
in the APS - para 3.2.5 above refers.

3.3
In addition to the proposed amendments and additions to the
statement of APS Values in cl.10 of the Bill as outlined above, the
Government has decided that it is appropriate to set out in this Ex
Memo the intended application of proposed value (j), without
amending the current, proposed wording of that value.

3.3.1
Under proposed value (j), the APS will provide a fair, flexible,
safe and rewarding workplace. While workplace arrangements
will be primarily the responsibility of individual agencies, the
Government also sees this value as encompassing the application of
certain consistent principles operating in the APS workplace and
applying to APS employment. While these principles will not
be legally binding in the same way as the APS Values, the
Government expects APS agencies to promote and embody them.

3.4
It is proposed to amend cl.11 of the Bill by substituting a new
s-cl.(1) to provide that directions in writing issued by the
Commissioner will be for the purpose of ensuring that the APS both
incorporates and upholds each APS Value and for determining, where
necessary, the scope or application of each Value.

3.5
It is proposed to amend cl.14 of the Bill by adding a new s-cl.(2),
providing that statutory office holders will be bound by the APS
Code of Conduct (cl.13 of the Bill refers) in the same way as APS
employees. Proposed new s-cl.14(3) of the Bill defines
‘statutory office holder’ to mean a person who holds
any office or appointment under an Act, being an office or
appointment that is prescribed by the regulations for the purposes
of the definition.

3.6
The effect of the proposed amendments will be that an Agency Head
who is a statutory office holder, and whose office or appointment
is prescribed by the regulations, will be bound by the Code of
Conduct in the same way as other Agency Heads.

3.7
It is envisaged that the regulations would prescribe that all
Agency Heads of the agencies listed in Parts C and D of Attachment
C of the original Ex. Memo. for this Bill would be bound by the
Code of Conduct.

3.8
Clause 15 of the Bill provides for prescription in the regulations
of the sanctions that an Agency Head may impose on an employee who
is found to have breached the Code of Conduct (cl.13 of the Bill
refers).

3.9
It is proposed to omit cl.15 of the Bill and to substitute a new
cl.15 in the following terms.

3.10
Proposed new s-cl.15(1) of the Bill will provide that an Agency
Head may impose the following sanctions on an APS employee in the
Agency who is found (under procedures established under s-cl.15(3)
of the Bill) to have breached the Code of Conduct:

(a)
termination of employment;

(b)
reduction in classification;

(c)
re-assignment of duties;

(d)
reduction in salary;

(e)
deductions from salary, by way of fine, and

(f)
a reprimand.

Proposed para 15(1)(f) of the Bill will now provide for an
additional sanction of a reprimand.

3.11
Proposed new s-cl.15(2) of the Bill will provide that the
regulations may prescribe limitations on the power of an Agency
Head to impose sanctions under s-cl.15(1) of the Bill.

3.12
Proposed new s-cl.15(3) of the Bill will provide that an Agency
Head must establish procedures for determining whether an APS
employee in the Agency has breached the Code of Conduct. The
procedures:

(a)
must comply with basic procedural requirements set out in
Commissioner’s Directions; and

(b)
must have due regard to procedural fairness; and

(c)
may be different for different categories of APS employees.

3.13
Proposed new s-cl.15(4) of the Bill will provide that the Public
Service Commissioner must issue directions in writing for the
purposes of s-cl.15(3) of the Bill.

3.14
Proposed new s-cl.15(5) of the Bill will provide that an Agency
Head must take reasonable steps to ensure that every APS employee
in the Agency has ready access to the documents that set out the
procedures referred to in s-cl.15(3) of the Bill.

3.15
It is proposed to amend cl.16 of the Bill by adding a new para(aa)
to provide that an APS employee must not be victimised, or
discriminated against, for reporting breaches (or alleged breaches)
of the Code of Conduct to the Merit Protection Commissioner or a
person authorised for the purposes of cl.16 of the Bill by the
Merit Protection Commissioner. This is consistent with the
approach taken in relation to a report that is made to the Public
Service Commissioner, an Agency Head or a person authorised for the
purposes of cl.16 of the Bill by the Public Service Commissioner or
an Agency Head.

4.1
It is proposed to amend cl.21 of the Bill by adding a new
s-cl.21(2), which will require that general directions issued by
the Prime Minister to Agency Heads, relating to the management and
leadership of APS employees, must be published in the Gazette
within 14 days after the direction is issued. Similar
amendments requiring publication in the Gazette are also made in
relation to

(a)
determination by the Agency Minister under s-cl.53(3) of the Bill
of the remuneration and other conditions of appointment of the
Merit Protection Commissioner (para 6.15 of this Ex. Memo.
refers);

(b)
determination by the Prime Minister under s-cl.61(3) of the Bill of
the remuneration and other conditions of appointment of a Secretary
of a Department (para 7.9 of this Ex. Memo. refers); and

(c)
determination by the Agency Minister under s-cl.63(3) of the Bill
of the remuneration and other conditions of appointment of the Head
of an Executive Agency (para 9.9 of this Ex. Memo. refers).

4.2
Clause 22 of the Bill provides that an Agency Head will be able, on
behalf of the Commonwealth, to engage persons as employees for the
purposes of the Agency.

4.3
It is proposed to amend cl.22 of the Bill by inserting new
s-cls.(1A), (1B), (1C) and (1D) as set out below.

4.4
Proposed new s-cl.22(1A) of the Bill will provide that the
engagement of an APS employee (including an engagement in
connection with an administrative re-arrangement under cl.72 of the
Bill) must be:

(a)
as an ongoing APS employee;

(b)
for a specified term or for the duration of a specified task;
or

(c)
for duties that are irregular or intermittent.

4.5
Proposed new s-cl.22(1B) of the Bill will provide that the usual
basis for engagement will be as an ongoing APS employee. This
provision is intended to apply to APS employment as a whole.
It is likely, from time to time, there will be individual agencies
where, for good reasons, the usual basis of engagement is not as an
ongoing employee. For example, an agency may be established
for a purpose that has a limited duration, such as to prepare for a
special event, or inquiry. In addition, some agencies with an
ongoing role may regularly engage significant numbers of
non-ongoing staff for a particular purpose - for example,
engagement of Antarctic expeditioners by the Australian Antarctic
Division of Environment Australia.

4.6
Proposed new s-cl.22(1C) of the Bill will provide that the
regulations may limit the circumstances in which persons may be
engaged as mentioned in para 22(1A)(b) or (c) of the Bill.

4.7
Proposed new s-cl.22(1D) of the Bill will provide that an
engagement for a specified term under para 22(1A)(b) of the Bill
may be extended, subject to any limitations that may be prescribed
by the regulations.

4.8
It should be noted that, while it is technically possible, as a
result of WRA s.121, for the AIRC to make an award which is
inconsistent with Commonwealth legislation, the Government regards
the types of employment that apply within the APS as a fundamental
issue, where the provisions included in the Bill, and any
associated regulations, should prevail. Accordingly, the
Government will not initiate any application to vary the award in a
way that is inconsistent with the provisions on types of employment
included in the Bill and regulations. It will also oppose any
such application made by others.

4.9
Similarly, while WRA ss.170LZ and 170VR enable the making of
regulations that would allow certified agreements and AWAs to
override prescribed conditions of employment set out in prescribed
Commonwealth laws, it is not the Government’s intention to
enable the provisions of the Bill and the regulations relating to
types of employment to be overridden by agreements under the
WRA.

4.10
It is intended to seek variations to the APS Award to come into
effect at the same time as the Bill, to reflect the new types of
employment provided for in the Bill. That award, and
agreements under the WRA, identify those terms and conditions of
employment that may vary depending on the basis of engagement.

4.11
Under cl.23 of the Bill, the Public Service Minister may make rules
about classifications of APS employees.

4.12
The purpose of the Classification Rules is to provide a systematic
mechanism for categorising employees for the purposes of
facilitating the application of the merit principle and the APS
mobility arrangements. Common Service-wide prescription of
the classification system is needed in order to distinguish clearly
between promotions (which are subject to merit) and assignments of
duties at the same classification level or reductions in
classification, where different rules and rights of review may
apply. The Classification Rules will create a framework of
approved classifications for these purposes. It is not
intended that they would be used to make rules that directly change
the classification of individual employees or their remuneration
and conditions.

4.13
The Classification Rules will recognise existing classifications in
awards. They will also be drafted so that, whenever there is
a variation in the classification set out in an award that applies
to the APS, the new classification will automatically become an
approved classification for the purposes of the Classification
Rules.

4.14
It is proposed to amend s-cl.23(2) of the Bill by omitting the
definition of ‘award’ in the second sentence, as that
definition is now proposed to be included in cl.7 of the Bill (para
2.1.2 of this Ex Memo refers).

4.15
It is proposed to further amend cl.23 of the Bill by adding a new
s-cl.(4), which broadly corresponds to 1922 PSA s-sec.52(4).
Proposed s-cl.23(4) of the Bill will provide that an Agency Head
cannot reduce the classification of an APS employee under
provisions of this Bill without the employee’s consent,
except in the following cases:

(a)
as a sanction under clause 15 of the Bill; or

(b)
in accordance with Public Service Commissioner’s Directions
made under clause 36 of the Bill; or

(c)
on the ground that the employee is excess to the requirements of
the Agency at the higher classification;

(d)
on the ground that the employee lacks, or has lost, an essential
qualification for performing duties at the higher
classification;

(e)
on the ground of non-performance, or unsatisfactory performance, of
duties at the higher classification;

(f)
on the ground that the employee is unable to perform duties at the
higher classification because of physical or mental incapacity;

(g)
in other circumstances prescribed by the regulations.

4.16
It is proposed to amend cl.23 of the Bill also by adding a new
s-cl.(5) which will provide that, if a relevant award, certified
agreement or AWA contains procedures to be followed when reducing
the classification of an APS employee, then a reduction will be of
no effect unless those procedures are followed.

4.17
Clause 24 of the Bill provides that an Agency head may determine in
writing the remuneration and other terms and conditions of
employment applying to an APS employee or employees in the
Agency.

4.18
It is proposed to amend cl.24 of the Bill by

(a)
inserting at the end of s-cl.24(1) of the Bill an additional
sentence to provide that a determination by an Agency Head,
concerning the remuneration or other terms and conditions of
employment of an employee or employees in the Agency, will be of no
effect to the extent that it would reduce the benefit to an
employee of any individual term or condition applicable to the
employee under an award, certified agreement or AWA;

(b)
omitting from s-cl.24(2) of the Bill the definition of
‘award’ and ‘certified agreement’, as those
definitions are now proposed to be included in cl.7 of the Bill
(para 2.1.2 and 2.1.3 of this Ex. Memo. refers); and

(c)
omitting from s-cl.24(3) of the Bill the words ‘special
circumstances’ and substituting the words ‘exceptional
circumstances’.

4.19
The amendments to s-cl.24(1) of the Bill will clarify the
relationship between the determination-making power under clause 24
of the Bill and awards and agreements under the WRA.

4.20
Subclause 24(3) of the Bill currently provides that the Public
Service Minister may, by notice in the Commonwealth Gazette ,
determine the remuneration and other terms and conditions applying
to APS employees, if the Public Service Minister is of the opinion
that it is desirable to do so because of special
circumstances. The proposed amendment replaces the test
‘special circumstances’ with ‘exceptional
circumstances’.

4.21
The effect of the proposed amendment is that the reserve power
provided by s-cl.24(3) of the Bill will be exercisable only where
the Public Service Minister is of the opinion that it is desirable
to do so because of exceptional circumstances. For example,
in a public emergency - economic or in relation to national
security or a national disaster - the Government may need to
use such a power to create additional entitlements for a short
period or to freeze existing entitlements or override conditions
included in awards, agreements or determinations under s-cl.24(1)
of the Bill, such as leave arrangements.

4.22
Paragraph 4.11.7 of the existing Ex. Memo. for the Bill states
that, as is currently the case in relation to 1922 PSA s82D
determinations, regulations will be made under the WRA to allow
later agreements to be inconsistent with determinations made under
cl.24 of the Bill. By way of clarification, it is intended
that such regulations will enable the making of later agreements
under the WRA that are inconsistent with a determination by an
Agency Head under s-cl.24(1) of the Bill, but not the making of
agreements that are inconsistent with a determination by the Public
Service Minister under s-cl.24(3) of the Bill. Thus, during
such time as a determination by the Public Service Minister under
s-cl.24(3) of the Bill remains in force, it would not be possible
for this to be overridden by a later agreement under the WRA.

4.23
Clause 29 of the Bill deals with the termination of employment of
an APS employee by an Agency Head. Under s-cl.29(1) of the
Bill, an Agency Head may terminate such employment at any time, by
notice in writing.

4.24
It is proposed to amend cl.29 of the Bill by substituting a new
s-cl.(2) to provide that, for an ongoing APS employee, the notice
of termination must specify the ground or grounds that are relied
on for the termination.

4.25
It is proposed to further amend cl.29 by substituting a new
s-cl.(3), providing that the only grounds for termination will be
the following:

(a)
the employee is excess to the requirements of the Agency;

(b)
the employee lacks, or has lost, an essential qualification for
performing his or her duties;

(c)
non-performance, or unsatisfactory performance, of duties;

(d)
inability to perform duties because of physical or mental
incapacity;

4.26
It is proposed to add a new s-cl.29(4) in the Bill to provide that
the regulations may prescribe grounds or procedures applicable to
the termination of the engagement of non-ongoing APS
employees. A ‘non-ongoing APS employee’ is
defined in cl.7 of the Bill to mean a person who is not an ongoing
APS employee.

4.27
It is proposed also to add a new s-cl.29(5) in the Bill to provide
that proposed new s-cl.29(4) of the Bill will not, by implication,
limit the grounds for termination for a non-ongoing APS
employee. This provision could be relevant if, for example,
regulations were to be made under s-cl.29(4) of the Bill dealing
with the processes to be followed relating to the termination of
employment on certain grounds, but they did not seek to specify
exhaustively the other permissible grounds for termination.

4.28
A decision by an SES employee to retire as a consequence of a
notice given by an Agency Head under s-cl.37(1) of the Bill, which
broadly corresponds to 1922 PSA s.76R, does not constitute a
termination by an Agency Head for the purposes of cl.29 of the
Bill.

(a)
adding new s-cl.31(2A) to provide that, if an Agency Head receives
any non-Commonwealth remuneration for performing duties as an
Agency head, then the Agency Minister may give a notice in writing
to the Agency Head in relation to the whole, or a specified part,
of the remuneration, and

(b)
adding a new s-cl.31(2B) to provide that the amount notified by the
Agency Minister will be taken to have been received by the Agency
Head on behalf of the Commonwealth, and may be recovered by the
Commonwealth from the Agency Head as a debt in a court of competent
jurisdiction.

4.30
Existing s-cl.31(3) of the Bill defines ‘non-Commonwealth
remuneration’ to mean remuneration from a person other than
the Commonwealth.

4.31
It is proposed to omit cl.33 of the Bill, relating to the
entitlement of an APS employee to review of any APS action that
relates to his or her APS employment, and to substitute a new cl.33
in the following terms.

4.32
Proposed new s-cl.33(1) of the Bill will continue to provide that
an APS employee is entitled to review, in accordance with the
regulations, of APS action that relates to his or her
employment. However, an APS employee will not be entitled to
review under cl.33 of the Bill of APS action that consists of the
termination of the employee’s employment.

4.33
Proposed new s-cl.33(2) of the Bill will provide that the
regulations may provide exceptions to the entitlement for review of
an action. A footnote to proposed s-cl.33(2) indicates, by
way of example, that the regulations might provide that there is
not an entitlement to review if the application for review is
frivolous or vexatious.

4.34
Proposed new s-cl.33(3) of the Bill will provide that, without
limiting the effect of s-cl.33(1) of the Bill, regulations made for
the purposes of that sub-clause may provide for the power which
will be available to the Merit Protection Commissioner, or any
other person or body, when conducting a review under the
regulations.

4.35
Proposed new s-cl.33(4) of the Bill will provide that regulations
made for the purposes of s-cl.33(1) of the Bill

(a)
may provide for an initial review to be conducted within the
responsible Agency; and

(b)
may provide that applications for review of particular kinds of APS
action are to be made directly to the Merit Protection
Commissioner; and

(c)
must provide for an application for review to be referred to the
Merit Protection Commissioner if the applicant is not satisfied
with the outcome of an initial review within the responsible
Agency; and

(d)
in the case of a review following an application or referral to the
Merit Protection Commissioner, must provide for the review to be
conducted by a person nominated by the Merit Protection
Commissioner or by a 3 member committee constituted in accordance
with the regulations.

4.36
Proposed new s-cl.33(5) of the Bill will provide that a person or
body that has conducted a review under cl.33 of the Bill may make
recommendations in a report on the review, but does not have power
to make any binding decision as a result of the review, except as
provided by the regulations.

4.37
Proposed new s-cl.33(6) of the Bill will provide that, if the Merit
Protection Commissioner is not satisfied with the response to
recommendations contained in a report on a review under cl.33 of
the Bill, the Merit Protection Commissioner may, after consulting
the Public Service Minister, give a report on the matter to the
Agency Minister of the responsible Agency and to either or both of
the following:

(a)
the Prime Minister;

(b)
the Presiding Officers, for presentation to the Parliament.

4.38
Proposed new s-cl.33(7) of the Bill will provide that, in cl.33 of
the Bill

action includes a refusal or failure to act.

APS action means action by a person in the capacity of an
Agency Head or APS employee.

responsible Agency , in relation to APS action, means the
Agency in which the person who did the action was at the time of
the action.

4.39
An application for relief in respect of the termination of
employment of an APS employee by an Agency Head under cl.29 of the
Bill, which the APS employee claims is unfair or unreasonable, may
be made under the relevant WRA provisions rather than under cl.33
of the Bill.

4.40
It is proposed to amend cl.36 of the Bill by specifying that the
directions which the Commissioner must issue in writing about
employment matters relating to SES employees will include matters
of engagement, promotion, redeployment, mobility and
termination.

4.41
The Government is not now proceeding with existing cl.38 of the
Bill, which provides that Division 3 of Part VIA of the
Workplace Relations Act 1996 (WRA) does not apply to the
termination of the employment of an SES employee. Rather, the
application of the termination of employment provisions of the WRA
to particular classes of APS employees will be regulated by the WRA
and the WR Regs, as it is for the rest of the workforce.

4.42
It is proposed to substitute a new cl.38 in the Bill providing that
an Agency Head will not be able to terminate the employment of an
SES employee unless the Commissioner has issued a certificate
stating that:

(a)
all relevant requirements of directions issued by the Commissioner
under cl.36 of the Bill have been satisfied in respect of the
proposed termination; and

(b)
the Commissioner is of the opinion that the termination is in the
public interest.

4.43
The requirement for the Public Service Commissioner to issue a
certificate under cl.38 of the Bill, in relation to the termination
of employment of an SES employee, does not apply to a decision by
an SES employee to retire as a consequence of a notice given by an
Agency Head under s-cl.37(1) of the Bill. The minimum
procedural requirements in this case will be set out in the
Commissioner’s Directions.

5.1
The Public Service Commissioner will have a range of functions
under the Bill including the functions specified in paras 41(1)(a)
to (h) of the Bill.

5.2
It is proposed to amend cl.41 of the Bill by:

·
inserting in para (a) provision for the Commissioner to evaluate
the extent to which Agencies uphold, as well as incorporate, the
APS Values specified in cl.10 of the Bill;

·
substituting a new para (f) providing for the Commissioner to
report to the appropriate authority on the results of any enquiries
into alleged breaches by Agency Heads of the Code of Conduct set
out in cl.15 of the Bill and, where relevant, make recommendations
for sanctions; and

·
adding a new s-cl.(3), defining the appropriate authority for a
report about an Agency Head to be

(a) the Prime Minister, if the Agency Head is a
Secretary; or

(b) the Agency Minister, if the Agency Head is the Head
of an Executive Agency; or

(c) the Presiding Officers, if the Agency Head is the
Head of a Statutory Agency that is prescribed by the regulations
for the purposes of this paragraph; or

(d) the Agency Minister, if the Agency head is the Head
of a Statutory Agency this is not prescribed by the regulations for
the purposes of paragraph (c).

It is envisaged that the regulations would prescribe the following
Heads of Statutory Agencies for the purposes of paragraph
(c): the Auditor-General, the Public Service Commissioner,
the Merit Protection Commissioner, the Australian Statistician, the
Chief Executive Officer of the Australian Customs Service, the
Commonwealth Ombudsman and the Commissioner of Taxation.

5.3
It is proposed to amend cl.44 of the Bill by adding a new s-cl.(4)
to provide that the annual report of the Public Service
Commissioner must be prepared in accordance with guidelines
approved on behalf of the Parliament by the Joint Committee of
Public Accounts and Audit. Similar amendments are proposed to
be made in relation to s-cl.51(2), 63(2) and 70(2) of the Bill
dealing, respectively, with the annual reports to be prepared by
the Merit Protection Commissioner, the Secretary of a Department
and the Head of an Executive Agency (paras 6.9, 7.10 and 9.10 of
this Ex. Memo. refer).

5.4
It is proposed to amend cl.45 of the Bill to provide that the
appointment of the Public Service Commissioner by the
Governor-General for a period of up to five years will be on a
full-time basis. It is envisaged that the Public Service
Commissioner would still be eligible also for appointment as the
Parliamentary Service Commissioner in accordance with proposed
s-cl.42(2) of the Parliamentary Service Bill 1999.

5.5
Clause 46 of the Bill provides that the remuneration and other
conditions of appointment of the Public Service Commissioner will
be as determined by the Minister responsible for administering this
Bill (described as the Agency Minister in the Bill).

5.6
Proposed new s-cl.46(2) of the Bill will provide that, for each
determination, the Minister will be required to seek the advice of
the Remuneration Tribunal and to take that advice into account.

5.7
Proposed new s-cl.46(3) of the Bill will provide that each
determination by the Minister must be published in the
Commonwealth Gazette within 14 days after the determination
is made.

6.1
Clause 50 of the Bill currently provides that the Merit Protection
Commissioner is to have such functions as may be prescribed by
regulations made for the purposes of Clause 33 of the Bill on
review of actions.

6.2
It is proposed to substitute a new cl.50 in the Bill to provide for
an expanded statement in the Bill of the Merit Protection
Commissioner’s functions and powers.

(a)
to inquire into reports made to the Merit Protection Commissioner
(or a person authorised by the Merit Protection Commissioner) under
cl.16 of the Bill, relating to protection of whistleblowers;

(b)
to inquire into alleged breaches of the Code of Conduct in cl.13 of
the Bill by the Public Service Commissioner and to report to the
Presiding Officers the results of such enquiries, with
recommendations for sanctions, where relevant;

(c)
to inquire into an APS action at the request of the Public Service
Minister and to report to the Minister on the results of the
inquiry;

(d)
to undertake such functions as are prescribed by regulations made
for the purposes of cl.33 of the Bill relating to review of
actions; and

(e)
to undertake such other functions as are prescribed by regulations
made for the purposes of the Bill.

6.4
Proposed s-cl.50(2) of the Bill provides that the Merit Protection
Commissioner will have, in relation to an inquiry under para
50(1)(c) of the Bill, inquiry and information gathering powers
similar to those of the Auditor-General in the AG Act (ss. 32,33,34
and 35 of that Act), together with powers under any other
provisions of the AG Act, or of regulations under that Act, that
are relevant to the operation of ss. 32, 33, 34 and 35 of that
Act. The same powers are proposed for the Public Service
Commissioner under s-cl.43(2) of the Bill.

6.5
Proposed s-cl.50(3) of the Bill provides that the regulations will
be able to authorise the Merit Protection Commissioner to charge
fees (on behalf of the Commonwealth) for the performance of
functions which may be prescribed under para 50(1)(e) of the
Bill.

6.6
Proposed s-cl.50(4) of the Bill provides that, for the purposes of
cl.50 of the Bill

·
‘action’ includes a refusal or failure to act, and

·
‘APS action’ means an action in relation to the
employment of an APS employee, being an action by another APS
employee or by an Agency Head.

6.7
It is proposed to substitute a new cl.51 in the Bill, amending the
provisions under which the Merit Protection Commissioner will be
required to submit an annual report.

6.8
Proposed s-cl.51(1) of the Bill provides that, after the end of
each financial year, the Merit Protection Commissioner must give a
report to the Public Service Minister, for presentation to the
Parliament, on the activities of the Merit Protection Commissioner
during the year.

6.9
Proposed s-cl.51(2) of the Bill provides that the report of the
Merit Protection Commissioner must be prepared in accordance with
guidelines approved on behalf of the Parliament by the Joint
Committee of Public Accounts and Audit.

6.10
Proposed s-cl.51(3) of the Bill provides that the report of the
Merit Protection Commissioner must be included in the annual report
by the Public Service Commissioner.

6.11
It is proposed to amend cl.52 of the Bill to provide that the
appointment of the Merit Protection Commissioner by the
Governor-General for a period of up to five years will be on a
full-time basis. Clause 45 of the Bill has been amended in
the same manner in relation to the appointment of the Public
Service Commissioner. It is envisaged that the Merit
Protection Commissioner would still be eligible for appointment as
Parliamentary Service Merit Protection Commissioner, in accordance
with proposed s-cl.49(2) of the Parliamentary Service Bill
1999.

6.12
Clause 53 of the Bill provides for the manner of determining the
remuneration and other conditions of appointment of the Merit
Protection Commissioner.

6.13
It is proposed to amend a drafting error in s-cl.53(1) of the Bill
by omitting the present reference to determination of those
conditions by the Public Service Minister and substituting
reference to determination by the Minister responsible for
administering this Bill (to be described as the Agency Minister in
the Bill).

6.14
Proposed new s-cl.53(2) of the Bill will provide that, for each
determination, the Minister will be required to seek the advice of
the Remuneration Tribunal and to take that advice into account.

6.15
Proposed new s-cl.53(3) of the Bill will provide that each
determination by the Minister must be published in the
Commonwealth Gazette within 14 days after the determination
is made.

7.1
Clause 57 of the Bill provides that the Secretary of a Department
will, under the Minister who administers that Department (the
Agency Minister), be responsible for managing that Department.

7.2
It is proposed to substitute a new cl.57 in the Bill to provide an
expanded statement of the responsibilities of Secretaries. A
similar amendment is proposed to cl.66 of the Bill, dealing with
the responsibilities and accountability of the Heads of Executive
Agencies (paras 9.2 to 9.5 inclusive of this Ex. Memo. refer).

7.3
Proposed s-cl.57(1) of the Bill provides that the Secretary of a
Department, under the Agency Minister, will be responsible for
managing the Department and must advise the Agency Minister in
matters relating to the Department.

7.4
Proposed s-cl.57(2) of the Bill provides that the Secretary of a
Department must assist the Agency Minister to fulfil the Agency
Minister’s accountability obligations to the Parliament to
provide factual information, as required by the Parliament, in
relation to the operation and administration of the Department.

7.5
It is proposed to amend s-cl.58(5) of the Bill, which provides that
the same person may hold more that one office of Secretary, to make
it clear that the person may be paid remuneration in respect of
only one such office.

7.6
It is proposed to add a footnote to s-cl.59(1) of the Bill
referring to the decision of the Federal Court of Australia in
Barratt v Howard [1999] FCA 1132 relating to the basis on
which requirements of procedural fairness applied to the
termination of an appointment of a Secretary of a Department in
accordance with 1922 PSA s.37.

7.7
It is proposed also to amend cl.59 of the Bill by omitting
s-cl.(4).

7.8
The Government is not now proceeding with s-cl.59(4) of the Bill,
which provides that Division 3 of Part VIA of the WRA does not
apply to the termination of the appointment of a Secretary.
Rather, the application of the termination of employment provisions
of the WRA to particular classes of APS employees will be regulated
by the WRA and the WR Regs. Secretaries are not currently
covered by these provisions as they are not covered by awards,
certified agreements or AWAs and they are above the income
threshold specified in the WR Regs.

7.12
Proposed new s-cl.63(2) of the Bill provides that the annual report
required of the Secretary under cl.63 of the Bill must be prepared
in accordance with guidelines approved on behalf of the Parliament
by the Joint Committee of Public Accounts and Audit.

9.1
Clause 66 of the Bill provides that the Head of an Executive
Agency, under the Minister who administers that Agency, is
responsible for managing the Agency.

9.2
It is proposed to substitute a new cl.66 in the Bill to provide an
expanded statement of the responsibilities and accountability of
the Heads of Executive Agencies. A similar amendment is
proposed to cl.57 of the Bill, dealing with the responsibility of a
Secretary for managing a Department (para 7.2 of this Ex. Memo.
refers).

9.3
Proposed s-cl.66(1) of the Bill provides that the Head of an
Executive Agency, under the Agency Minister, will be responsible
for managing the Agency.

9.4
Proposed s-cl.66(2) of the Bill provides that the Head of an
Executive Agency must assist the Agency Minister to fulfil the
Agency Minister’s accountability obligations to the
Parliament to provide factual information, as required by the
Parliament, in relation to the operation and administration of the
Agency.

9.5
Proposed s-cl.66(3) of the Bill provides that the Head of an
Executive Agency is accountable to the Government, the Parliament
and the public in the same way as the Secretary of a
Department.

9.7
The Government is not now proceeding with s-cl.67(5) of the Bill,
which provides that Division 3 of Part VIA of the WRA does not
apply to the termination of the appointment of the Head of an
Executive Agency. Rather, the application of the termination
of employment provisions of the WRA to particular classes of APS
employees will be regulated by the WRA and the WR Regs.

9.10
Proposed new s-cl.70(2) of the Bill provides that the Annual Report
required of the Head of an Executive Agency under cl.70 of the Bill
must be prepared in accordance with guidelines approved on behalf
of the Parliament by the Joint Committee of Public Accounts and
Audit.

10.1
Clause 72 of the Bill deals with actions which the Public Service
Commissioner may consider to be necessary or desirable to give
effect to administrative re-arrangements. Present s-cl.72(3)
of the Bill provides that Division 3 of Part VI A of the WRA would
not apply to any termination of employment under this clause.

10.2
It is proposed to omit s-cl.72(3) of the Bill and to substitute new
s-cls.72(3), (3A) and (3B) as set out below.

10.3
The Government is not now proceeding with s-cl.72(3) of the Bill
as

(a)
the compulsory transfer of staff within the APS to give effect to
changed administrative arrangements under para 72(1)(a) of the Bill
does not involve a termination of employment - staff are
simply transferred between APS agencies and the APS remains the
employer; and

(b)
the power under para 72(1)(b) of the Bill to compulsorily transfer
staff out of the APS to a specified Commonwealth authority does
result in a technical termination of employment. This power
is parallel to the power in 1922 PSA s.81C, which is not currently
excluded from the WRA. Thus the removal of present s-cl.72(3)
of the Bill preserves the status quo in relation to movements of
staff under para 72(1)(b) of the Bill.

10.4
Proposed new s-cl.72(3) of the Bill will provide that, if an APS
employee (the transferred employee ) becomes an employee of a
Commonwealth authority under paragraph 72(1)(b) of the Bill, the
employee is entitled to remuneration and other conditions of
employment that are not less favourable than the terms and
conditions to which the employee was entitled as an APS employee
immediately before ceasing to be an APS employee, under:

(a)
an award, certified agreement or AWA; or

(b)
a determination under provisions of the Bill.

10.5
Proposed new s-cl.72(3A) of the Bill will provide that s-cl.72(3)
of the Bill will cease to have effect on the next occasion when
there is a relevant variation in remuneration and conditions in the
Commonwealth authority. For this purpose, relevant
variation means a variation that:

(a)
results from the making or variation of an award, certified
agreement or AWA; and

(b)
applies to the transferred employee, or to a class of employees
that includes the transferred employee.

10.6
Proposed new s-cl.72(3B) of the Bill will provide that the
regulations may prescribe arrangements for determining any
variation of the remuneration and other conditions of employment
applicable to

(a)
APS employees who are moved to another Agency under para 72(1)(a)
of the Bill; and

11.1
It is proposed to insert a footnote to cl.76 of the Bill, dealing
with the disclosure of personal information by APS agencies, noting
that the Freedom of Information Act 1982 and the Privacy
Act 1988 have rules about the disclosure of personal
information.

11.2
Clause 78 of the Bill provides that powers or functions that are
conferred on persons under the Bill are able to be delegated within
the framework provided by the Bill.

11.3
It is proposed to insert a new s-cl.78(5A) in the Bill which will
provide that the Merit Protection Commissioner may delegate in
writing to an APS employee any of the Merit Protection
Commissioner’s powers or functions under the Bill, other than
the power of delegation.

11.4
It is proposed to insert a new s-cl.78(6A) in the Bill to provide
that, in exercising his or her power of delegation under s-cl.78(6)
of the Bill, an Agency Head will not be able to delegate powers or
functions to an outsider, without the prior consent of the Public
Service Commissioner. For this purpose,
‘outsider’ is defined in proposed s-cl.78(6A) of the
Bill to mean a person other than:

(a)
an APS employee; or

(b)
a person appointed to an office by the Governor-General, or by a
Minister, under a law of the Commonwealth.

11.5
It is proposed to amend s-cl.78(7) of the Bill to insert a
reference to proposed new s-cl.78(5A) of the Bill, which will
enable sub-delegation of powers or functions delegated by the Merit
Protection Commissioner to an APS employee (the first delegate) to
another person (the second delegate).

11.6
It is proposed to amend s-cl.78(8) of the Bill to insert a
reference to proposed new s-cl.78(5A) of the Bill. The effect
of the proposed amendment will be that a second delegate exercising
powers or functions of the Merit Protection Commissioner, in
accordance with s-cl.78(7) of the Bill, will be taken to have
exercised or performed the powers or functions as if they had been
exercised by the Merit Protection Commissioner.

11.7
Clause 79 of the Bill provides that the Governor-General may make
regulations prescribing matters required, permitted, necessary or
convenient to be prescribed for the purposes of the Bill
(s-cl.79(1)). In particular, the regulations may prescribe
penalties for offences against the regulations by way of fines up
to 10 penalty units (s-cl.79(2)). A penalty unit equals $110
(s.4AA of Crimes Act 1914 ).

11.8
It is proposed to substitute a new s-cl. 79(2) in the Bill to
provide that, without limiting the Governor-General’s
regulation-making power in s-cl.79(1) of the Bill, regulations may
be made for, or in relation to, any of the following:

(a)
confidentiality of information obtained by persons performing, or
assisting in the performance of, functions under clause 33,
paragraph 41(1)(c) or paragraph 50(a) or (c) of the Bill;

(b)
immunity from civil action in respect of acts or omissions of
persons performing, or assisting in the performance of, functions
under clause 33, paragraph 41(1)(c) or paragraph 50(a) or (c) of
the Bill; and

(c)
prescribing penalties for offences against the regulations by way
of fines of up to 10 penalty units.